By Penny Mintz
If you are one of the 1,900 people, during those brutally hot days at the end of June and the beginning of July, who signed a petition to get me—Penny Mintz—on the ballot as candidate for Member of the Democratic Party State Committee, you may have noticed that my name did not appear.
My petitions were filed on time. The signatures were not challenged. For eight days the Board of Elections (BOE) reported that I was a candidate for female member of the state committee. Then, on August 1st, the BOE suddenly removed my name from the ballot because the petitions did not identify me as female.
Article 6 of the Election Law sets forth the rules governing petitioning. The law states specifically that these rules are to be liberally construed. As long as there is no fraud or confusion, the intent of the enrolled voters to designate a candidate must be given effect. The voters’ intent is not supposed to be frustrated by technical objections. Mandates for liberal construction were added to the law in 1992 and 1996 because, over the years, too many candidates had been disqualified due to technical flaws in their petitions. These disappointed candidates petitioned the courts for redress so often that New York became the election litigation capital of the country. Half of all election law cases were New York cases.
No issue of fraud was raised in my case. Certainly, there was no confusion about my gender. I personally garnered 450 of the signatures, and another 250 supporters signed in my presence. More signed at my son’s request. He said it was his “mother” who was running. None of those 700-plus signers were confused. As for the others who signed, they saw my name; Penny is simply not a gender-neutral name.
The BOE decision was based on language in Article 2 of the Election Law. Article 2 governs the purpose and formation of state committees. One section says that the petitions of male and female committee members “shall list candidates for such positions separately by sex.” In 1984 the Court of Appeals, the highest court in the state, ruled that Article 2 must be strictly construed. My attorney, Arthur Schwartz, challenged the BOE ruling in my case and argued that the 1984 ruling does not reflect the 1992 and 1996 legislative changes that required more liberal application of the rules. Indeed, since 1992 courts have ruled that the BOE must look at the whole petition when there is a deficiency or omission. Unless there is a reasonable probability of confusion or deception, the petitions are valid.
Unfortunately, State Supreme Court Justice Carol Edmead said that she was constrained by the 1984 Court of Appeals ruling, and affirmed the BOE decision. Then she turned to me and apologized. Undeterred, however, Arthur filed an appeal. As election cases are expedited, Arthur was arguing before five justices in the Appellate Division one week later. Three justices affirmed without comment. The two dissenting judges wrote that the 1,900 signers who wanted my name on the ballot “should not have their selection invalidated where there was no likelihood that any of them thought [Penny Mintz] was a man or was running for the male slot.” This sounded fair to me. Nevertheless, we had lost. So, Arthur appealed to the highest state court—the Court of Appeals in Albany.
I was an appellate attorney for over 15 years and only got to the Court of Appeals three times. It’s a big deal to argue there. It took me weeks to write my papers.
Two days after the Appellate Division decision, Arthur filed his brief. A week after that, we drove up to Albany. All seven of the judges on the Court of Appeals listen to and interrupt arguments to ask questions and make comments. It’s what they call a “hot bench.” Arthur did a great job in the hot seat. Unfortunately, we went down—five to two. The affirming judges wrote no opinion. Once again, the dissent was brilliant.
Judge Rowan Wilson wrote that the 1984 decision was “inconsistent with the legislative command” in the 1996 Ballot Access Law amendments. The Election Law was amended precisely, Judge Wilson wrote, to end the sort of ballot challenge that disqualified me and had given New York the dubious distinction of being home to half the nation’s election-law litigation. He concluded that “absent a serious concern with fraud, persons wishing to run for office should not be shut out of elections by court-sanctioned strict adherence to technical requirements. No such concerns exist here.” Bravo, but, alas, a Pyrrhic victory.
And that, in a nutshell, is why my name wasn’t on the ballot.